Pamela Walker v Ken Vidler Surfsports [1995] IRCA 655

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether VALID REASON for termination - HARSH, UNJUST OR UNREASONABLE INDUSTRIAL RELATIONS ACT 1988 Ss 170DC, 170DE, 170EA, 170EDA Quality Bakers v Goulding, IRCA No. 285 of 1995, Beazley J, unreported, 23 June 1995 Kenefick & Ors v Australian Submarine Corporation Pty Ltd (1995) 131 ALR 197 Coker Godson v National Dairies Limited, IRCA No. 359 of 1995, Marshall J, unreported, 4 August 1995 Hockey v Multiskip Pty Ltd, IRCA No. 557 of 1995, Marhsall J, unreported, 29 September 1995 Mitchell-Collins v The Latrobe Council, IRCA No. 422 of 1995, Spender J, unreported, 25 August 1995 Aitken v CMETSWUA, IRCA No. 352 of 1995, Lee J, unreported, 7 August 1995 PAMELA WALKER -v- KEN VIDLER SURFSPORTS - WI95/1954 BEFORE: R D FARRELL JR PLACE: PERTH DATE: 30 NOVEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1954 BETWEEN: PAMELA WALKER - Applicant AND: KEN VIDLER SURFSPORTS - Respondent MINUTE OF ORDERS BEFORE: R D FARRELL JR PLACE: PERTH DATE: 30 NOVEMBER 1995 THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1954 BETWEEN: PAMELA WALKER - Applicant AND: KEN VIDLER SURFSPORTS - Respondent BEFORE: R D FARRELL JR PLACE: PERTH DATE: 30 NOVEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Pamela Walker ("Mrs Walker"), by the respondent, Ken Vidler, who trades as Ken Vidler Surfsports ("Ken Vidler Surfsports"). Reinstatement is not sought. Both the applicant and the respondent represented themselves. It is Mrs Walker's contention that Ken Vidler Surfsports breached the provisions of Section 170DE(1) of the Act because she says the termination of her employment did not occur for a valid reason. She also contends that the termination of her employment was in any event harsh, unjust or unreasonable within the meaning of Section 170DE(2) of the Act. Mrs Walker contends that the real reason for her dismissal was an unfair assessment of her performance. She contends that, because the real reason for the termination of her employment was not disclosed to her, she was never given the opportunity to defend herself against this assessment. She would have been entitled to such an opportunity under Section 170DC of the Act. Ken Vidler Surfsports contends there was a valid reason for the termination, based on the operational requirements of the undertaking, and that the termination of Mrs Walker's employment was not harsh, unjust or unreasonable within the meaning of Section 170DE(2) of the Act. Factual Background Mrs Walker was employed by Ken Vidler Surfsports on 22 February 1995 as a part-time book-keeper. She took over from an existing book-keeper, whom Ken Vidler Surfsports had always found satisfactory. She was provided with a schedule of duties on her engagement (Exhibit W2). These duties included drawing up the monthly staff rosters. Soon after Mrs Walker started in her employment Mr Vidler spoke with her about her performance. He says he spoke with her because he thought she was having difficulties coping with the job. Mrs Walker did not raise this conversation in her evidence, and this, together with the evidence of Mr and Mrs Vidler on the matter, left me with the impression that anything Mr Vidler said to Mrs Walker was said in a "low key" manner, such that she did not find it confronting. Then, just prior to Easter - probably on 7 April 1995 - Mrs Rebecca Vidler spoke with Mrs Walker about her performance. Mrs Vidler is Ken Vidler's wife, draws a salary from the business and performs a managerial role. She has authority to make decisions within the business, though she could be over-ruled by Mr Vidler. Mr Vidler had commitments in the eastern states over Easter, and Mrs Vidler and her children were intending to join him there. Following this discussion, Mrs Vidler provided Mrs Walker with a letter setting out matters of concern relating to her performance. The letter was dated 7 March, 1995, but it was a matter of consensus between the parties that the letter was contemporaneous with the discussion, and it is likely that the date of the letter should properly have been 7 April 1995. Before being shown the letter in court, Mrs Vidler recalled the discussion as being primarily concerned with perceived problems in Mrs Walker's communication with the staff, which Mrs Vidler saw as being very important. She had no recollection of other issues raised by the letter, such as the need for Mrs Walker to become more involved in forward planning and budgeting, being discussed at the meeting, but she doesn't rule out the possibility that they may have been. The letter ends in the following terms: "As he has already discussed with you, Ken does not feel that comfortable with your work. He feels that he will need to check certain important procedures. I hope this has clarified why we are having concerns about your position. We will review it with you again on Ken's return from the East." Mr and Mrs Vidler's evidence was that on their return after Easter, Mrs Walker's . performance had improved and was, at least, satisfactory. Mr Vidler noted that she was managing to complete some tasks that her predecessor had not gotten around to completing. Mrs Walker also asserts that her performance after Easter was satisfactory, and disputes that there were any shortcomings in her performance before Easter. All three witnesses gave evidence that the volume of sales turnover in shops of Ken Vidler Surfsports's type is seasonal, with sales increasing in summer and decreasing in winter. However, Mr Vidler contends that sales in the autumn and winter of 1995 were worse than had been anticipated, and that this appeared to be a trend throughout their sector of the retail market. A meeting was held with staff on a Wednesday - apparently 5 July 1995 - to discuss the role staff could play in assisting the business through these difficulties. Mr Vidler says he asked staff to raise any suggestions which would increase sales or would cut costs. He gave the staff an example of such a suggestion, being where a member of staff had suggested that staffing levels on Sundays be reduced in view of the light trade on that day. That suggestion had resulted in substantial savings to the business, given that wages are paid at double rates on Sundays. Mrs Walker's recollection of that meeting is that the emphasis was on sales staff doing everything they could to increase sales. While she did not dispute that Mr Vidler gave the example referred to above, she did not recall any general invitation to suggest cost cutting measures, and said that had there been any such invitation she would not have seen it as being directed to her. Following the meeting Mr Vidler had a private discussion with Mrs Walker. He told her that one of the options he was considering to cut the costs of the business was that he might take over the performance of the book-keeping duties from her, and that he would think about it over the weekend. Mr Vidler did not put any other options to Mrs Walker, and did not expressly invite her to suggest any alternatives to him. It was Mrs Walker's recollection that this discussion occurred the same day, soon after the staff meeting. Mr Vidler thought it occurred a couple of days later, on Friday 7 July, 1995. On balance, I accept that it was more likely to have occurred on the Friday, which would make more natural Mr Vidler's reference to the weekend. Mr Vidler was in the store the following Monday, but nothing was said between he and Mrs Walker as to her continuing employment. On Wednesday, 12 July, 1995, Mrs Walker approached Mr Vidler and asked him whether he had made a decision. He said that he had made a decision, and that he would be taking over her duties, so there would be no more work for her. She recalls him saying that he had drawn up a letter giving her notice earlier that day. He is not sure whether that was the case, but later conceded that he had probably already drawn up the notice letter. The letter (Exhibit V6) dated 12 July 1995, which was given to Mrs Walker in due course, reads: "Dear Pam, As you are aware we are having to look at ways in which we can cut costs owing to the drastic downturn in our business. I previously advised you that I was considering taking over your job as bookkeeper. After much consideration I have decided to do so. Up until a few years ago I had always done all the book work myself and I feel that having a bookkeeper doing work that I can easily do myself is a luxury I cannot afford in the business at this time. Please take this letter as giving you notice of employment. I am planning to take over all book work at the end of this month and anticipate you finishing work with us on 28th July.